COURSE NAME: LAW OF EVIDENCE II

COMPETENCE AND COMPELLABILITY

“The modern law of competence and compellability of witnesses may be stated in

two general rules. The first is that any person is a competent witness in any

proceedings. The second is that all competent witnesses are compellable. At

common law, there were numerous exceptions to these two general rules. The

exceptions have been slowly whittled down by judicial and statutory reforms over

the last two centuries, but some of them still persist to the present day” –

Anonymous.

Introduction

Competence refers to the ability of a witness to tender evidence before court. Compellability

on the other hand means the power to a force a witness to tender evidence before court. The

general rule is that any witness is competent to tender evidence and all competent

witnesses are compellable. There are exceptions to the general rule; most of these

exceptions are rooted in common law. However, over time judicial and statutory

development has reduced some of these exceptions as will be seen in the following paper.

In days gone by, the rule in England at common law was that in civil actions, any person

having even the slightest interest in the outcome of an action was incompetent to testify,

including the plaintiff, the defendant, Husband and wife of that party. The other classes of

persons not competent to testify were persons of weak intellect and children of tender years.

Another determining factor to competence was the ability to swear an oath. Generally only

Christians could give oaths meaning that non-Christians and Atheists were incompetent to

give evidence. The above scenarios will be discussed succinctly below

1. Children of tender years .

Previously, the evidence of children was regarded with suspicion as to require strict tests of

competence, corroboration and a warning of the dangers of convicting using such evidence.

At common law, competence of a child of tender years depended on the opinion of the judge,

who had the duty to inquire into the matter by asking questions of the child in open court

and in the presence of a jury. In older authorities, the test for determining whether or not a

child understood the duty to tell the truth in a court of law, hinged on whether or not the

child understood the divine sanction of the oath. The ability to take oath was regarded as the

only safeguard of truthfulness in a witness. Questions asked by the judge were focused on

this subject and cases were adjourned so that the child could receive appropriate religious

instruction before giving evidence. In Brasier (1779) 1 Leach 199, 1 East PC 443, the

court held that the competence of children depended on, “the sense and reason they

entertain of the danger and impiety of falsehood, to be collected from the answers to the

question propounded to them by the court.”

The Evidence Act Cap 80 of the laws of Kenya provides in Section 125 (1) that all persons

shall be competent to testify, unless the court considers that they are prevented from

understanding the questions put to them, or from giving rational answers to those questions

by tender years, extreme old age and disease. In DPP v. M [1998] QB 913, it was held

that a child was capable of giving intelligible testimony, whatever his age, if the child was

able to understand the questions and answer them coherently and comprehensibly. The

question whether a witness is competent may be raised by either party or the court on its

own motion. The judge is only bound to investigate a witness’s competence if he has or is

given reason to doubt it. Where it is not the case, the judge may find it appropriate to remind

a child, in the presence of the accused of the importance of telling the truth. In determining

whether the witness is competent, any proceedings for determining of the question shall

take place in the absence of the jury, expert evidence may be received and any questions of

the witness shall be conducted by the court in the presence of the parties. This is best

concluded in the spirit of R v. Hampshire 1[1995] 2 All ER 1019, CA at 1029. It was held

that it should be a matter of the judge’s perception of the child’s understanding

demonstrated in the course of ordinary discourse. It further directed that the question of

competence should be dealt with at the earliest possible moment and not as an act of

ratification after the evidence has already been adduced. In the Oaths and Statutory

Declarations Act Section 19, it is provided that, a child of tender years may only give

evidence under oath if the child, in the opinion of the court, understands the nature of an

oath and its solemnity. Section 124 of the Evidence Act says that notwithstanding the

provision of Sec 19 of Oaths and Statutory Declaration Act, if a child of tender years gives

evidence, then the evidence must be corroborated by other material evidence implicating

the accused. The only exception to this provision is where the case involves sexual offence

and the only available evidence is that of the alleged victim.

2. Competence and compellability of advocates/clients

As seen previously the general rule that all persons are competent witnesses and all

competent witnesses are compellable is subject to certain exceptions at common law.

One such exception is the non-compellability of advocates/clients to give testimony over

communications between them, commonly referred to as advocate-client privilege. However;

the claim of privilege meets a four-part test at common law.

The test requires:-

1. The communications must originate in confidence and that they will not be disclosed.

2. This element of confidentiality must be essential to the full and satisfactory

maintenance of the relationship between the parties.

3. The relationship must be one which in the opinion of the community ought to be

‘sedulously fostered’ and

4. The injury that would inure to the relation by the disclosure of the communication

must be greater than the benefit thereby gained for the correct disposal of litigation.

The rationale behind the exception to the general rule that compels the advocate/client to

give evidence on confidential communications was highlighted by Lord Edmund-Davies

stated in the case of Anderson V. Bank of British Columbia (1876) 2 Ch D 644 at 649.

He stated: ‘the object and meaning of the rule is this: that as, by reason of the complexity

and difficulty of our law, litigation can only be properly conducted by professional men, it is

absolutely necessary that a man in order to prosecute his rights or to defend himself from an

improper claim, should have recourse to the assistance of professional lawyers, and it being

so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be

able to make a clean breast of it to the gentleman whom he consults with a view to the

prosecution of his claim, or the substantiating of his defence against the claim of others; that

he should be able to place unrestricted and unbounded confidence in the professional agent,

and that the communications he so makes to him should be kept secret, unless with his

consent ( for it is his privilege, and not the privilege of the confidential agent), that he should

be enabled properly to conduct his litigation. That is the meaning of the rule.’

This dictum by Lord Edmund has been further embraced by the provision of Section 137,

Evidence Act CAP 80 that states: ‘No one shall be compelled to disclose to the court any

confidential communication which has taken place between him and his advocate unless he

offers himself as a witness, in which case he may be compelled to disclose any such

communications as may appear to the court necessary to be known in order to explain any

evidence which he has given, but no others.’

3. Non Christians and Atheists

The common law’s disposition was that only those persons prepared to testify on oath of the

gospel were competent witnesses. The fear was that the evidence of certain persons such as

non-Christians and atheists whose inability to be properly sworn was held to remove the

essential sanction of the oath, without which evidence was not to be received.

A leading authority in the case of non-Christians and atheists is Omychund v. Baker

(1745) 1 Atk 21 where there were extensive and elaborate debates as to whether only

Christians could take the oath. Willes C.J succinctly put it thus: “infidels, who believe in God,

and future rewards and punishments in the other world, may be witnesses; yet if they do not

believe in God, or future rewards and punishments, they ought not to be admitted as

witnesses.” However according to the Oaths and Declaratory Act the touchy issue of non

Christians and atheists has been settled, anyone who objects to being sworn either on the

grounds that he has no religious beliefs or that his religious beliefs does not allow swearing is

allowed to make a solemn affirmation where the law requires that a swearing take place i

Whether an oath is administered, the intricacies of the particular religion which is adhered to

by the witness is not important what the court looks at is whether the oath appears to the

court to be binding on the conscience of the witness and, if so, whether it is an oath which

the witness considers to be binding upon his conscience.

Both these conditions were satisfied in the case of R v. Kemble (1990) 3 All ER 116 CA in

which a Muslim had taken oath using the New Testament, whereas under the strict tenets Of

Islam no oath is valid unless taken on a copy of the Koran in Arabic.

4. Spouses.

Under the Common Law, a party’s spouse was an incompetent witness whether for or

against the other in both criminal and civil cases. Interest was mostly the ground for

disqualification when it came to evidence tendered by spouses. The exceptions under

common law where when violence was involved between the spouses, in instances of

bigamy, where subject matter was property owned the spouses or when it involved the

welfare of children. In these instances a spouse could testify against his or her accused

spouse. Some aspects of common law have been retained in the Evidence Act Cap 80. In civil

proceedings the parties to a suit, the husband or wife of any party to the suit shall be a

competent witnessii. In criminal proceedings every person with an offence, and the wife or

husband of the person charged, shall be a competent witness for the defence at every stage

of the proceedings, whether such person is charged alone or jointly with any other person,

provided that; the person charged shall not be called as a witness except on his own

qualification, the wife or husband of the accused shall not be called as a witness unless the

charged person consents.iii The only instance where statute allows spouses to be competent

and compellable is where the charge is that of bigamy, offences under the Sexual Offences

Act, and in acts or omissions affecting the person, property or children of such a person iv

5. Competence and compellability of an accused to testify

The general rule under common law was that an accused could not be a competent witness

in a case against himself. This remains untouched by statutory or judicial development.

Article 49 (1) (d) of the Constitution gives the accused the right not to be compelled from

making any confession or admission that could be used as evidence against himself. The

only development in this area is where an accused is a witness for the prosecution against a

co-accused. New developments in the Justice system have created a situation where an

accused can testify for the prosecution in exchange for leniency. This arrangement isn’t

expressly provided for in statute but rather taken as a kosher device used by law

enforcement authorities to further justice especially in cases where there are no readily

available witnesses.

6. Persons of unsound mind/illness/drunkenness

The traditional test for competence is that a person taking an oath must have sufficient

intelligence to understand the nature of the oath and its consequences. A person whose

mental abilities are impaired by reason of mental illness or intellectual disability is not

automatically deemed to be an incompetent witness. If the test mentioned is applied and he

is found to be competent he is deemed to be a competent witness. This was illustrated in R v

Hill (1851) 2 Den 254where the witness, a patient of a mental asylum and was deluded

into thinking that spirits spoke to him. He was otherwise rational and sane and had a clear

understanding of his obligation under the oath. He was held competent to give evidence. The

High Court commented; “an insane person is not rejected as a witness unless his form of

derangement is such as to affect his testimony on the particular facts or class of matter to

which he is to depose”. Three principles were laid out in the case:v

(a) If in the opinion of the judge a proposed witness, by reason of defective intellect, does

not understand the nature and sanction of an oath, he is incompetent to testify.

(b) A person of defective intellect who does understand the nature of an oath may give

evidence and it will be left to the jury to attach such weight to his testimony as they

see fit.

(c) If his evidence is so tainted with insanity as to be unworthy of credit, the jury may

properly disregard it.

The approach taken should be the secular one stated in R v Hayes [1977] 1 WLR

234where it was held that the important consideration is: Whether the child (witness) has

sufficient appreciation of the solemnity of the occasion and the added responsibility to tell

the truth, which is involved in taking the oath, over and above the duty to tell the truth which

is an ordinary duty of normal social conduct. In R v Bellamy (1985) 82 Cr App Rep 222,

CA in a case of a 33 year old woman with the mental age of 10; it was held that the judge

had unnecessarily inquired into the extent and belief of her belief and knowledge of God; the

proper test is the one that was stated in R v Hayes[1977] 1 WLR 234 . Should a judge

conduct an inquiry into the competence of a witness of unsound mind, it should be in open

court in the presence of the accused, as stated in R v Deakin [1994] 4 All ER 769 CA .

7. Deaf and dumb.

Judges formerly held that the deaf and dumb were idiots from birth, thus, incompetent to

testify. That position has been eroded by Statute. The evidence Act chapter 80 laws of Kenya

states at Section 126(1), a witness who is unable to speak may give his evidence in any

other manner in which he can make it intelligible, as, for example, by writing or by signs but

which writing must be written, and the signs made in open court. Section 126(2) evidence so

given shall be deemed to be oral evidence. The interpretation of such signs must be carried

out by a skilled and sworn expertvi. In their absence, by someone very familiar with the

witness’s day to day mode of communication. The court must only record the signs made but

not an interpretation of the signsvii. Nothing more should be inferred from the witness other

than what he/she has communicated. This was held in the case of Kishan Singh v state 1995

cr lj 2027 (raj)

The witness for prosecution was dumb. She indicated by sign language that the accused had

lifted her clothes and done something to her private parts. She didn’t indicate that there was

intercourse nor was there further evidence of the same. The appellant was therefore charged

with the lesser offence of attempted rape rather than rape.

8. Competence and compellability of sovereigns, diplomats and consular

officials

Heads of states, monarchs and consular officials are not compellable to give Evidence. In

the little mentioned case of R vs Mylius (1911) The Times, the accused Edward Fredrick

Mylius had been convicted of criminal libel. The accused had published an article alleging

that King George IV was a bigamist. During the trial, Sir Rufus Isaacs QC, the Attorney

General, argued that the King, because of his position as the monarch in whose name justice

was dispensed was not competent as a witness in his own courts and separately that he

could not be compelled to give evidence. It was a proposition that was endorsed during the

trial by the Lord Chief Justice, Lord Alverstone.

Immunity for diplomatic and consular officials is provided for in the Privileges and

Immunities Act Cap 179 and Vienna conventions on diplomatic and consular relations.

However the mother state may decide to pull immunity and the officials may be compellable.

i Cap 15 Sec 15 ii Cap 80 Sec 127 (1)iii Cap 80 Sec 127 (2)iv Cap 80 Sec 127 (3)v Adrian Keane 4th Ed. Pg 114vi Cowley v people 83 NY 478 (Amer)vii Kumbar Musa v state of Gujarat A.R 1966 Guj 101, 1965, Guj L.R 830

References:

1. SIR JOHN WOOD ROFFE AND SYED AMIR ALI, LAW OF EVIDENCE 18th edition

2. PRINCIPLE AND DIGEST OF THE LAW OF EVIDENCE 8th edition by Chief M. Monir,

Justice Deoki Nandan and R.D Saxena

3. EVIDENCE IN EAST AFRICA by H.F Morris.

4. PETER MURPHY, MURPHY ON EVIDENCE, 10th edition, Oxford University Press inc,

New York (2008)

5. CROSS & TAPPER ON EVIDENCE

6. SAKAR ON EVIDENCE

7. ADRIAN KEANE - MODERN LAW OF EVIDENCE

8. EVIDENCE ACT CAP 80 Laws of Kenya

9. OATHS AND STATUORY DECLARATIONS ACT CAP 15 Laws of Kenya

10.THE CONSTITUION OF KENYA